Ottawa defends carbon pricing against Ontario’s constitutional challenge

Ottawa defends carbon pricing against Ontario’s constitutional challenge

OTTAWA—The federal government defended its carbon price law in Ontario’s top court Tuesday, arguing Parliament can enforce a minimum levy across Canada because reducing greenhouse gas emissions is a legitimate national concern under the constitution.

Sharlene Telles-Langdon, a lawyer with the federal Justice Department, said Canada’s Liberal government had the authority to pass the Greenhouse Gas Pollution Pricing Act, which is being challenged by Ontario and other provinces as an unconstitutional intrusion into provincial jurisdiction.

She said the impacts of emissions that cause climate change cross provincial and international boundaries, and that Canada’s chosen tool to combat this problem — mandating that each province has a minimum price on carbon emissions — will be undermined if provinces are allowed to opt out.

“It is a measure that needs to apply throughout Canada,” Telles-Langdon said Tuesday, addressing the Ontario Court of Appeal where the provincial government’s constitutional challenge is being heard this week.

“Recognizing that as a federal power … has not unseated the bounds of federalism.”

The backstop has already been implemented in Ontario, New Brunswick, Saskatchewan and Manitoba — all provinces that argue Canada’s carbon price law is unconstitutional.

On Monday, lawyers representing Ontario’s Progressive Conservative government denounced the law as a “massive expansion” of federal power, because they said it allows Ottawa to regulate whatever emits greenhouse gases — a broad scope that provincial lawyer Josh Hunter said would apply to “basically all human activities.”

Hunter warned that if the law is allowed to stand, that would mean Ottawa has power to regulate things like how homes are heated and how often people are allowed to drive their cars — although he conceded such “draconian” measures were unlikely.

Telles-Langdon responded Tuesday that the federal government believes the law is constitutional, because the accumulation of greenhouse gas emissions has a national dimension that justifies a uniform, national response under the constitution’s “peace, order and good government” provision.

She argued the federal backstop does not “displace” provincial authority to regulate greenhouse gas emissions, but rather sets a minimum standard to ensure Ottawa’s decision to fight climate change with carbon pricing isn’t undermined by provinces that refuse to participate. Quebec, for instance, has its own cap-and-trade system, while British Columbia has had a carbon tax since 2008.

Telles-Langdon pointed to evidence from Environment Canada that carbon pricing is most effective when jurisdictions have similar prices in place — otherwise emissions won’t go down because companies shift production to places where they won’t have to pay the carbon levy.

“We’re not forcing the Ontario government to do pricing,” she said. “Parliament has made a policy choice … to fill the gaps to ensure that the mechanism itself — the scheme — works.”

Telles-Langdon also referenced Canada’s repeated failure to reduce greenhouse gas emissions without a national strategy, a record of failure that dates back to the country’s first international commitment to fight climate change in 1992.

Canada’s latest annual tally of national greenhouse gas emissions — submitted Monday to the United Nations — shows emissions have only dropped 2 per cent below 2005 levels as of 2017, and that national emissions actually increased by 1 per cent from 2016 to 2017.

Canada has pledged to cut emissions to 30 per cent below 2005 levels by 2030.

In an emailed statement, Environment Minister Catherine McKenna said the increase in emissions is within the report’s margin of error, and noted that the Environment Canada experts who crafted the tally credited the uptick in emissions to the resumption of oilsands activity in Alberta after the 2016 fire in Fort McMurray.

“Our government’s strongest measures to fight pollution are only coming into effect now,” McKenna said. “These include a price on pollution across the country, historic investments in public transportation, coal phaseout and investments in renewables.”

The Ontario court challenge is set to resume Wednesday morning.

Alex Ballingall is an Ottawa-based reporter covering national politics. Follow him on Twitter: @aballinga

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